Back Page: ‘Jurocracy’ skews Charter’s intent

By
Canadian Lawyer

04 Apr 2007

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Forgive the interruption to the non-stop celebrations of the 25th anniversary of the Canadian Charter of Rights and Freedoms. There’s nothing interesting there — of course lawyers love it. The Charter made lawyers, law professors, and judges the new political class in Canada, but without the accountability hassles of a legislature. Who needs question period or elections to pass controversial legislation? Just become a judge.

So rather than go to the Charter’s loving chorus in the bar associations and the law schools, let’s do something different. Let’s ask the men who actually wrote and approved the Charter what they think of their creation, 25 years later. It’s an impossible inquiry in the United States, the last of whose constitution’s framers died more than 150 years ago. But in Canada, many of our Charter’s authors are still alive.

And they don’t like what has been done to their baby one bit.

We know what former Alberta premier Peter Lougheed thinks. Six years ago, he gave an interview in which he said, “[Former Manitoba premier] Sterling Lyon and I argued that the essence of the Charter is to let the courts take the place of elected parliamentarians. . . . My God, that’s what happened.”

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Lyon was equally aghast at what had been done to his Charter. “If anyone had said to us in 1981 that the Charter would be used to win voting rights for prison inmates, we never would have believed it,” he said in 2002.

But it’s not just the Conservative premiers who are appalled. Former Saskatchewan premier Allan Blakeney, a New Democrat, agreed with Lougheed and Lyon. A year ago, he told Western Standard magazine that while the Charter is a good check on “unconscious incursions” on liberty by the state, he opposed the courts’ conceit that “virtue resides in the judicial process while venality resides in the political process.”

Judges using the Charter to make laws are particularly dangerous, because they are unmoored from reality, such as the need for budgeting or balancing other political priorities. “I don’t like to see the courts rush to frolics of their own that have high price tags on them.” He encouraged legislators to fight back. “I hope to see parliaments and legislatures which will, in a robust way, contest the implied proposition that the courts are always standing on the side of the angels,” he said, calling for more use of the notwithstanding clause.

Lyon, Lougheed, and Blakeney are joined by former Newfoundland premier Brian Peckford. In a 2002 speech, he laughed at the haughty language of Charter-drunk judges, writing as if from Mount Olympus, or even Mount Sinai, treating the Charter as “a modern, secular Bible or Koran.” Last year, he called on premiers to use the notwithstanding clause more often, and to “start rehabilitating” it politically. Nova Scotia’s John Buchanan shares his colleagues’ view that Charter-happy judges have reached beyond their grasp. “I’ve always believed the power of the people is important and the power of the people who’ve been elected is important and that judges should not have the ultimate power to determine public policy,” he said.

Why haven’t these men been quoted in the media bacchanalia of Charter celebrations? Because they’re sticks in the mud whose views are contrary to Charter groupthink. The fact that these were the men who actually gave birth to the Charter is a quaint footnote. And that’s the whole point: their vision of the Charter is hopelessly outdated. If they didn’t have the politically correct pedigree of actually being the fathers of the document, no doubt they would be labeled as Charter-haters, or even bigots.

In a single generation, the original intent of the document has been lost. Not lost, actually — purposefully thrown away, as the new ruling class, the jurocracy, used the Charter to take power. That jurocracy despises the notwithstanding clause, an integral section of the Charter, because it is a permanent reminder of their hubris, and that they are acting out of synch with the document itself, not just its founders.

In many ways, the Charter has led to the Americanization of Canada, with judges displacing legislators at the top of the power pyramid. But at least in the U.S. there are vestiges of accountability, such as public hearings to appoint judges. To challenge a judge is now tantamount to challenging medicare in Canada — the new ruling class has tried to put it out of reach of public discussion.

Too bad; the framers of Canada’s Charter had wide-ranging, no-holds-barred debates when they brought the Charter in. Debates that are far more thoughtful than the mantras of judicial infallibility that colour the profession today. It’s hard enough to get people to understand the original intent of the document as it is. In a few years, when the last of the framers pass away, it will be even harder.

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